Our View: Voters were right on 2006 anti-bias law; ask Supreme Court

When Michigan voters in 2006 banned racial discrimination by the state’s colleges, they actually committed discrimination.

At least, that was the paradoxical, Humpty Dumpty ruling this month by a sharply divided federal court. It was a redefining of discrimination, and calls for correction by the U.S. Supreme Court.

At issue was Michigan’s 2006 Proposal 2, also known as the Michigan Civil Rights Initiative (MCRI), a state constitutional amendment passed overwhelmingly by voters. It banned using race, sex, ethnicity, color or national origin as factors in government hiring, government contracting or admission to public universities.

The principle is basic. Government should treat individuals equally under law regardless of race, color, sex, etc. Giving preference to certain groups in competition, whether for contracts or admission, puts people from other groups at a disadvantage based on features they’re born with.

Opponents, including the group By Any Means Necessary (BAMN), objected because the law blocks college race-based affirmative action entry programs. In those, applicants from “underrepresented” minorities were given extra points based on such factors as their race or color. On Nov. 16, the Sixth Circuit Court of Appeals in Cincinnati narrowly ruled 8-7 that, yes, using the constitution to ban racial discrimination by colleges was itself discriminatory.

The court ruling focused not on race but procedure. Eight judges ruled that, by putting the race-preference ban into the constitution, Michigan violated the 14th Amendment by making that issue harder to challenge than other preferences. Legacy points, for example, are often awarded to children of alumni. Foes of that policy might seek change by running against university regents, the majority said, but Proposal 2 upset the “political structure.”

The seven other judges, however, issued scathing dissents.

“If there is one feature of affirmative-action programs that favors their constitutionality, it is that they grow out of the democratic process,” wrote Judge Jeffrey S. Sutton. “... Yet this lawsuit turns these assumptions on their head. Democracy, it turns out, has nothing to do with it.”

“For the first time,” Judge Julia Smith Gibbons wrote, “the presumptively invalid policy of racial and gender preference has been judicially entrenched as beyond the political process.”

“Today’s decision is the antithesis of the Equal Protection Clause of the Fourteenth Amendment,” Judge Richard A. Griffin added. “I urge the Supreme Court to consign this misguided doctrine to the annals of judicial history.”

The dissenting judges are right for many reasons, and these in particular.

First, testimony showed Michigan university regents do not set admissions policies. They long ago handed that off to unelected faculty. “Having little or no direct or indirect influence on the bodies that actually set admissions standards — the faculty committees — the people of Michigan made a political change at the only level of government actually available to them as voters,” Gibbons wrote.

Page 2 of 2 - She and other judges also noted no evidence to suggest that making opponents win a statewide referendum the same way MCRI-backers did is any more burdensome than the effort needed to win multiple elections for multiple years to capture all of the state’s university boards.

Second, giving MCRI-related features such as race, sex and others extra preservation is not novel but common. Federal law, in fact, singles out those as “protected characteristics.” A college admissions officer can joke about where or whether your parents went to college — those are not protected characteristics — but he risks violating federal law if he jokes about your race. Michigan voters simply took those same protected characteristics and applied them to government contracts and admissions — just as the U.S. Constitution bans biases selectively.

Colleges are plagued more by tuition inflation than by non-diversity. They could and should do more to assist applicants from poorer backgrounds. That would tend to help many of the same students who affirmative action programs target, yet would not harm applicants — Asian-Americans, for example — who some colleges believe to be “overrepresented.”

Michigan Attorney General Bill Schuette should definitely appeal the Sixth Circuit’s ruling to the U.S. Supreme Court. Given that the Ninth Circuit has upheld a California bias ban virtually identical to Michigan’s, it’s probable the high court would take the case and resolve the conflict.

Hopefully, that will rescue the will of Michigan voters to ban egregious biases from the lower court’s Humpty Dumpty logic.